FILED

United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

July 8, 2014
Elisabeth A. Shumaker
Clerk of Court

BARBARA DAHLBERG, individually

and as personal representative of decedent
Ronald Dahlberg,
Plaintiff - Appellant,
v.
MCT TRANSPORTATION, LLC;
DANIEL J. OBRIEN,

No. 13-2119
(D.C. No. 1:11-CV-00203-RHS-LFG)
(D.N.M.)

Defendants - Appellees.

ORDER AND JUDGMENT*

Before HARTZ, EBEL, and PHILLIPS, Circuit Judges.

Barbara Dahlberg sued the driver of a tractor-trailer and his employer after an
automobile accident on Interstate 25 resulted in injuries to her and in the death of her
husband, Ronald Dahlberg. She lost on all claimseither by way of pretrial dismissal or
jury verdict. Ms. Dahlberg now challenges the district courts dismissal of her claims
against the drivers employer for negligent training and supervision, as well as the jurys
finding that the driver was not negligent. The dispositive issue on appeal is whether the
jurys no-negligence verdict stands as to the driver despite various evidentiary challenges.

* This order and judgment is not binding precedent except under the doctrines of law
of the case, claim preclusion, and issue preclusion. It may be cited, however, for its
persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth
Circuit Rule 32.1.

Because we conclude that it does, Ms. Dahlbergs challenge to the dismissal of her directnegligence claims necessarily fails as well. There is no practical likelihood that the jury
would have found the drivers employer liable for negligent training or supervision when
it found no negligence on the part of the driver himself.

BACKGROUND
Ronald Dahlberg was driving south on Interstate 25 near Las Vegas, New Mexico, one
windy day in February 2008. He drove a pickup truck with a large travel-trailer hitched to
the back. His wife, Barbara, sat in the passenger seat. At the time, Daniel OBrien was
also southbound on the same stretch of highway, driving a tractor-trailer rig for his
employer, MCT Transportation. OBrien was driving in the right lane of travel.
Mr. Dahlberg attempted to pass OBrien. At some point during the pass, however, he
lost control of his truck. The key dispute at trial was what caused this loss of control.
According to Ms. Dahlberg, her husband was forced to veer to the left when OBrien
encroached into their lane, which caused their trailer to sway out of control. For his part,
OBrien testified that he did not encroach into the Dahlbergs lane but actually moved
onto the shoulder to give them more room. He said he noticed a lot of movement in the
Dahlbergs truck and travel-trailer as they passed him. Defendants suggested that it was
the wind that caused this movement and ultimately caused the Dahlbergs travel-trailer to
yaw and overturn once it moved beyond OBriens rig. The wind that day was blowing
from the west, meaning that OBriens rig would have blocked the Dahlbergs from the
wind during the pass.

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Aside from this dispute about the cause of the accident, all accounts of the ensuing
crash were generally the same. Because of the dramatic tipping of the Dahlbergs trailer
onto its left side, the Dahlbergs truck swung into the right lane, in front of the tractortrailer. The tractor-trailer collided with the Dahlbergs. The Dahlbergs truck then rolled
before coming to a standstill to the west of the highway. Both Dahlbergs suffered injuries,
although Mr. Dahlbergs were far more severe. He died less than a week after the
accident.
Ms. Dahlberg (individually and as personal representative of her late husband) filed
negligence claims against OBrien and MCT. Early on, Defendants filed a motion under
Federal Rule of Civil Procedure 11 and 12(b)(6) to dismiss various paragraphs of the
complaintincluding those alleging that MCT had negligently trained and supervised
OBrien. The district court1 granted the motion, effectively dismissing the negligenttraining and negligent-supervision claims.
Only the negligence claim against OBrien went to trial. To establish OBriens
negligence, Ms. Dahlberg had to prove at least one of the following: (1) that OBrien
encroached on the Dahlbergs lane; (2) that OBrien drove his tractor-trailer too fast in
the windy conditions; (3) that OBrien failed to exercise ordinary care at all times to
prevent an accident; or (4) that OBrien failed to maintain proper control so as to avoid
placing himself or others in danger and to prevent an accident. After a four-day trial, the

The parties consented to proceed before a United States Magistrate Judge (referred
to as the district court).
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jury implicitly found that Ms. Dahlberg had not proven any of these things and rendered a
verdict in OBriens favor.

DISCUSSION
Ms. Dahlberg raises two overarching challenges on appeal. First, she contends that the
district court wrongfully dismissed her negligent-training and negligent-supervision
claims against MCT. Second, she contends that the district court abused its discretion
with a number of evidentiary rulings, thereby entitling her to a new trial on her
negligence claim against OBrien. We address the second of these challenges first and
conclude that the alleged evidentiary errors do not entitle Ms. Dahlberg to a new trial.
Because the verdict stands, Ms. Dahlbergs first challenge necessarily fails as well: As a
matter of common sense, the jurys verdict in favor of OBrien precludes any possibility
that the dismissed claims against MCT could have been successful.

1. Evidentiary Rulings
Ms. Dahlberg raises six evidentiary challenges on appeal. She claims the district court
abused its discretion by (1) prohibiting questions regarding the physical impossibility of
Justin DuBoiss eyewitness testimony; (2) excluding computer animations created by
expert witness Kevin Johnson; (3) allowing defense counsel to repeatedly raise the issue
of Mr. Dahlbergs seat belt use (or lack thereof); (4) allowing Police Officer Carl Patty to
offer improper opinion testimony; (5) limiting the cross-examination of OBrien to
exclude evidence of training; and (6) excluding altogether the testimony of designated

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trucking-industry expert Walter Guntharp. We address, and reject, each of these

challenges in turn.
But first, our standard of review. We review evidentiary rulings like the ones here for
abuse of discretion, and we pay deference to the trial courts familiarity with the case
and experience in evidentiary matters. Elm Ridge Exploration Co. v. Engle, 721 F.3d
1199, 1213 (10th Cir. 2013). An abuse of discretion occurs when the district court
commits a legal error or relies on clearly erroneous factual findings, or where there is no
rational basis in the evidence for its ruling. Breakthrough Mgmt. Grp. v. Chukchansi
Gold Casino & Resort, 629 F.3d 1173, 1189 (10th Cir. 2010). Even if we conclude that
the district court abused its discretion in admitting or excluding the evidence, we will
consider the courts error harmless unless it affected a partys substantial rights. Fed. R.
Evid. 103(a); Fed. R. Civ. P. 61; Abraham v. BP Am. Prod. Co., 685 F.3d 1196, 1202
(10th Cir. 2012). An error affects substantial rights if it had a substantial influence on the
outcome or leaves one in grave doubt as to whether it had such effect. Abraham, 685
F.3d at 1202.

1.1 Physical Impossibility of DuBoiss Testimony

Justin DuBois was the only nonparty eyewitness to the accident and the first person to
respond to the scene. His testimony largely corroborated Defendants version of events.
Just before the collision, he was on Interstate 25 driving norththe opposite direction of
the Dahlbergs and OBrien. DuBois testified that he was about 300 to 400 yards away
when he began to focus on the approaching trucks. He testified that the Dahlbergs and

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OBrien were in their own lanes and that OBriens tractor-trailer did not encroach. He
further testified that as the Dahlbergs completed their pass, their trailer came into the
wind and blew over, causing the Dahlbergs truck to rotate or swing into the right lane,
in front of OBrien. App. vol. 7, at 1422. All of this happened pretty quickly from
DuBoiss perspective because he was travelling in the opposite direction. Id. at 1418. He
passed the scene around the time of the collision, watching the final events through his
rearview mirror. According to DuBois, there was nothing OBrien could have done to
avoid the accident.
Ms. Dahlberg twice sought to discredit DuBoiss testimony. First, she tried to have
her expert witness, Kevin Johnson, testify that it was physically impossible (given the
relative speed of DuBois and the trucks) for DuBois to have witnessed the accident as he
described. Her goal was to establish that Mr. DuBois could not have observed the
vehicles for as long as he stated because, given the closing speed, he would have been
past the tractor-trailer well before that time had elapsed. Appellants Br. at 33.
Defendants objected to this line of questioning, saying that there was nothing about
closing speeds or the plausibility of DuBoiss account in Johnsons expert report. The
district court agreed and ruled that Johnson could not testify that DuBoiss account was
physically impossible.
We find no abuse of discretion in the district courts approach to Johnsons testimony.
A party who seeks to introduce an experts opinion into evidence must provide a written
disclosure report to the other side that contains a complete statement of all opinions the
witness will express and the basis and reasons for them. Fed. R. Civ. P. 26(a)(2)(B)(i)
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(emphasis added). The rule also imposes a continuing duty to supplement the expert
report with any additions or changes. Id. at 26(a)(2)(E), 26(e)(1). These requirements are
mandatory and self-executing. Lohnes v. Level 3 Commcns, Inc., 272 F.3d 49, 59 (1st
Cir. 2001). This means that when a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not allowed to use that information
or witness at a trial, unless the failure was substantially justified or is harmless. Fed.
R. Civ. P. 37(c)(1); Jacobsen v. Deseret Book Co., 287 F.3d 936, 952 (10th Cir. 2002).
Ms. Dahlberg does not argue that she properly disclosed the testimony at issue. At
trial, she could not point to any physical-impossibility opinions in Johnsons report. Nor
can she now. As far as we can tell, Defendants indeed lacked pretrial notice of the
proposed testimony at issue. In fact, based on Johnsons deposition testimony, Defendants
had reason to expect that Johnson believed DuBoiss statement was good. App. vol. 5,
at 1047. Given this, paired with Ms. Dahlbergs failure to explain why her nondisclosure
might be justified or harmless, we see no reason to question the district courts ruling.
Moreover, despite the courts ruling, Johnson still testified at some length about the
physics of DuBoiss recitation of events. Ms. Dahlberg asked Johnson how far away
DuBois was when he first saw the Dahlbergs and OBrien. Johnson testified that DuBois
and the trucks had a closing speed of about 210 feet per second, that DuBois observed the
trucks for 10 to 15 seconds, and that one could calculate the distance between DuBois
and the oncoming trucks by multiplying the closing speed by the observation time. From
these numbers, Johnson testified that for DuBois to watch the oncoming trucks for 15
seconds he would have had to begin watching at a point of more than 3000 feet away. But
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Johnson then pointed out that DuBois said he saw the trucks at 300 to 400 yards, or just
900 to 1200 feetless than half the distance calculated. In light of all this, we think Ms.
Dahlberg actually achieved her desired goal: she suggested to the jury that DuBois was
either mistaken in his estimates regarding time and distance or that DuBois had travelled
beyond the accident site during the period in question.2 True, the district court did not
allow Johnson to state an ultimate conclusion that DuBoiss account was impossible, but
we think it unlikely that Johnson would have testified that DuBoiss testimony was truly
impossible in any event; Johnson merely believed that DuBoiss account was a bit of a
stretch. Id. at 993.
Ms. Dahlberg also faults the district court for refusing to allow her to develop her
physical-impossibility theory while cross-examining DuBois. Yet the record shows that
the district court did no such thing. On cross-examination, Ms. Dahlberg asked DuBois
just two questions relating to closing speed and distance: First, given relative speeds, she
asked DuBois, How fast would that put you in relation to [the Dahlbergs and OBrien]?
App. vol. 7, at 1453. Second, she asked DuBois if he was able to testify how close or
[sic] your speed relative to each other? Id. Unsurprisingly, Defendants twice objected to
form, and the district court sustained the objections. Ms. Dahlberg made no attempt to
rephrase and asked no further questions on this subject, such as whether DuBois might
have been farther away than he thought when he first saw the trucks or if he had observed
2

We doubt these two points did much to discredit DuBois because both are consistent
with his testimony. DuBois testified to approximate (not definite) distances and he never
even testified at trial as to how long he observed the trucks. Plus, even if the 1015
seconds figure was correct, DuBois freely admitted that he travelled beyond the accident
site, observing the final events through his rearview mirror.
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them for just a few seconds before passing them. On this record, we think Ms. Dahlberg
alone is to blame for not counteract[ing] the impact of DuBoiss testimony with her
physical-impossibility theory. Appellants Br. 65.
Apart from arguing that the district court thwarted her two attempts to discredit
DuBois, Ms. Dahlberg argues that the district court created a double standard when it
allowed Defendants expert, J.T. Hayes, to testify that DuBoiss testimony was not
physically impossible. But we disagree that the court applied any kind of double standard
in allowing Hayes to offer limited testimony that he didnt know why [DuBois] couldnt
see [the accident]. App. vol. 8, at 1593. While the district court limited Johnsons
testimony under Rule 26, it had no occasion to do so for Hayes testimony. This is
because Ms. Dahlberg never objected to Hayes physical-possibility testimony under
Rule 26.
Finally, we reject Ms. Dahlbergs argument that the district courts rulings led to a
one-sided record, the prejudice of which was heightened by the fact that Defendants
then proceeded to criticize [Ms. Dahlbergs] expert, Mr. Johnson, for not having
addressed whether the testimony of Mr. DuBois was physically possible. Appellants Br.
at 65. To the extent the record favored one side over another, we think this was simply
because DuBois offered persuasive eyewitness testimony. Defense counsel was free to
highlight the importance of this testimony and to argue that none of Ms. Dahlbergs
witnesses (including Johnson) had addressed it. We are not aware of any rule that limits a
litigant from calling attention to material omissions in an experts testimonyeven if
those omissions might not have existed but for enforcement of Rule 26.
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1.2 Computer Animations

Ms. Dahlberg also challenges the district courts exclusion of two computer
animations depicting the accident, both of which she disclosed just before trial. We find
no abuse of discretion in the district courts exclusion of these exhibits.
We have recognized the value of exhibits that summarize data contained in other
exhibits and that present the evidence in a simpler form. United States v. Downen, 496
F.2d 314, 321 (10th Cir. 1974). Demonstrative aids may be effective in illustrating
relevant information to a jury, assuming a proper foundation is laid. Sanchez v. Denver &
Rio Grande W. R.R., 538 F.2d 304, 306 (10th Cir. 1976). In assessing foundation in this
context, courts consider (among other things) whether the proffered demonstrative exhibit
fairly and accurately summarize[s] previously admitted competent evidence. Wilson v.
United States, 350 F.2d 901, 907 (10th Cir. 1965). Put another way, to be truly
demonstrative, an exhibit must actually demonstrate something else.
For the most part, the demonstrative label doesnt much matter. Any and all proffered
evidence (demonstrative or not) is admitted or excluded based on the same rules of
evidence. See Lillie v. United States, 953 F.2d 1188, 1190 (10th Cir. 1992) ([A]ny kind
of presentation to the jury or the judge to help the fact finder determine what the truth is
and assimilate and understand the evidence is itself evidence.) For example, a
demonstrative exhibit will be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion, a propensity to mislead, or needlessly
cumulative presentation. See Fed. R. Evid. 403. Rules applying to expert testimony
similarly apply across the board; any exhibits that will be used to summarize or support
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an expert opinion must be included in a timely expert report. Fed. R. Civ. P.

26(a)(2)(B)(iii) (emphasis added).
Ms. Dahlberg claims that the district court misconstrued her exhibits as expert
reconstructions rather than demonstrative aids. She asserts that the animations were not
being offered to express an expert opinion, but rather to make [Johnsons] testimony
clear. Appellants Br. 58. From her perspective, it is irrelevant whether she disclosed the
exhibits under Rule 26 or whether Johnson previously opined about the relative
movement of the trucks or their impact. Ms. Dahlberg argues that the animations should
have been admitted for the simple reason that they accurately depicted other evidence
that is, the highway patrol diagram and data from the engine control module (ECM) in
OBriens tractor-trailer.
At the outset, we disagree that the animations fairly and accurately depicted the
highway-patrol diagram and the ECM data. Johnson testified that he created the
animations using a diagram prepared by Defendants accident-reconstruction expert, J.T.
Hayesnot the police diagram. It appears to us that the animations depict something
other than what Ms. Dahlberg claims.
Foundation issues aside, we are also unpersuaded that the district court abused its
discretion in excluding the exhibits under Rule 26. Under this rule, unless a court order
says otherwise, any exhibit that summarize[s] or support[s] an expert opinion must be
disclosed well in advance of trial. See Fed. R. Civ. P. 26(a)(2)(B)(iii), (D). Again, Ms.
Dahlberg does not argue that she disclosed the computer animations in compliance with

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Rule 26, but instead claims that Rule 26 was simply inapplicable because the exhibits did
not summarize or support Johnsons testimony.
We fail to see how the animations didnt support Johnsons testimony but still
managed to make [Johnsons] testimony clear. Appellants Br. at 58. Regardless, the
district court viewed the animations and concluded that their admission would amount to
Johnson offering a surprise reconstruction of the accident. One animation graphically
showed the movements (including the time/distance calculations) of OBriens truck,
App. vol. 6, at 1101, and the other showed the interaction between the two trucks, where
that takes place, time/distance analysis between those two, as well as speeds involved,
id. at 1103. If admitted, the court concluded, these exhibits would not simply illustrate
other evidence but would in fact convey Johnsons undisclosed opinions (as a selfproclaimed accident reconstructionist) about how the accident occurred. App. vol. 5, at
962. After viewing the animations ourselves, we cannot say that the district court abused
its discretion in reaching this conclusion.
The problem with allowing the undisclosed opinions, of course, is that Defendants
had no notice that Johnson would testify about the mechanics of the accident. See Cook v.
Rockwell Int'l Corp., 580 F. Supp. 2d 1071, 1122 (D. Colo. 2006) (The purpose of Rule
26(a)(2)s expert disclosure requirements is to eliminate surprise and provide the
opposing party with enough information regarding the experts opinions and
methodology to prepare efficiently for deposition, any pretrial motions and trial.).
Johnson was not designated to offer opinions regarding the relative movement and

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collision of the trucksas the district court noted.3 Nor was there any mention of a
reconstruction or animation in Johnsons expert report. Without some justification or
indication that Ms. Dahlbergs late disclosure was harmless, the district court was free to
exclude the exhibits. See Fed. R. Civ. P. 37(c)(1); Jacobsen, 287 F.3d at 953 ([A] district
court can allow evidence violating Rule 26(a) only if the violation was justified or
harmless .).

1.3 Seat Belt Use

Ms. Dahlberg also argues that the district court abused its discretion by repeatedly
allowing Defendants to emphasize to the jury the fact that Mr. Dahlberg was not wearing
a seat belt. Appellants Br. at 60. She claims that the repeated seat-belt references
violated New Mexicos Safety Belt Use Act. See N.M. Stat. Ann. 66-7-373(A) (West
2008) (Failure to be secured by a safety belt as required by the Safety Belt Use Act
shall not in any instance constitute fault or negligence and shall not limit or apportion
damages.). We reject her argument for three reasons.
First, the district court hardly allowed Defendants to emphasize that Mr. Dahlberg
was not wearing his seat belt. Defendants mentioned seat belt in the presence of the
3

Johnsons designated opinions were confined to the following: (1) it was windy on
the day of the accident; (2) Mr. Dahlberg and OBrien were both driving too fast for
conditions; (3) OBriens vehicle caused a wind shadow, rather than a wind suck; (4)
there was no physical evidence to determine if either vehicle encroached into the other
lane; (5) Ms. Dahlbergs account of OBriens encroachment into the passing lane was
consistent with the physical evidence; (6) Mr. Dahlbergs evasive maneuver (combined
with the wind) could result in loss of control and the subsequent rollover; (7) the gouge
mark on the road was consistent with this; and (8) OBrien did not slow his vehicle as the
Dahlbergs were passing him but steered to the right and then, a short time later, abruptly
decelerated by applying the brakes.
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jury exactly one time, and the district court sustained Ms. Dahlbergs objection. On
another occasion, Defendants asked the attending physician why Mr. Dahlberg was
unrestrained. And again, Ms. Dahlbergs objection was sustained. All other references
and questions were confined to Mr. Dahlbergs ejectment from the truck. Notably, Ms.
Dahlberg did not object when Defendants first asked about ejectment. She even agreed
that some questioning about ejectment was fair game. App. vol. 5, at 959. In fact,
according to the record, Ms. Dahlbergs own admitted exhibits featured numerous
references to ejectmentand even to Mr. Dahlbergs nonuse of his seat belt.
Second, the district court minimized the impact of the few references to seat belts and
restraints in exhibits and in the remarks of counsel. Midtrial, it allowed Ms. Dahlberg to
redact references to seat belts from her exhibits (including some already published to the
jury). The court also instructed the jury that it could not consider the attorneys remarks
and arguments as evidence.
Third, New Mexicos Safety Belt Use Act says only that a persons failure to be
secured by a safety belt shall not in any instance constitute fault or negligence and shall
not limit or apportion damages. N.M. Stat. Ann. 66-7-373(A) (West 2008). Here, the
jury never reached Mr. Dahlbergs comparative fault or damages because it found that
OBrien was not negligent. Mr. Dahlbergs failure to use his seat belt had no bearing on
OBriens negligence. Accordingly, we believe the references to ejectment wereat
mostharmless. See Jenkins v. Gen. Motors Corp., No. 93-6286, 1994 WL 413286, at *1
(10th Cir. Aug. 9, 1994) (finding any error in admission of evidence concerning plaintiffs
failure to use seat belts harmless where seat belts similarly played no role in the verdict).
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1.4 Officer Pattys Testimony

Ms. Dahlberg further argues that the district court allowed responding Police Officer
Carl Patty to testify in violation of Federal Rules of Evidence 701 and 702. She claims
that Defendants presented Officer Patty as a lay witness but that he testified as an expert.
Ms. Dahlberg specifically challenges Officer Pattys testimony that (1) the safe speed of
travel at the time of the accident was 75 miles per hour, and (2) he found no driver error
on the part of OBrien. She asserts that neither of these opinions was based on Officer
Pattys firsthand knowledge, but rather on his expertise as a police officer.
We find no abuse of discretion in the admission of Officer Pattys testimony under
Rule 701. That rule permits a lay witness to offer opinion testimony only if three criteria
are satisfied. The testimony must be (1) rationally based on the witnesss perception;
(2) helpful to clearly understanding the witnesss testimony or to determining a fact in
issue; and (3) not based on scientific, technical, or specialized knowledge within the
scope of Rule 702. Fed. R. Evid. 701. The perception requirement stems from F.R.E.
602 which requires a lay witness to have first-hand knowledge of the events he is
testifying about so as to present only the most accurate information to the finder of fact.
United States v. Bush, 405 F.3d 909, 916 (10th Cir. 2005) (internal quotation marks
omitted). The non-scientific-knowledge requirement, in turn, prohibits lay witnesses from
expressing opinions as to matters which are beyond the realm of common experience
and which require special skill and knowledge. James River Ins. Co. v. Rapid
Funding, LLC, 658 F.3d 1207, 1214 (10th Cir. 2011). If a witnesss testimony results
from a process of reasoning which can be mastered only by specialists in the field, it is
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expert testimony subject to expert disclosure requirements. Fed. R. Evid. 701 advisory
committees note (2000 Amend.); see United States v. YeleyDavis, 632 F.3d 673, 684
(10th Cir. 2011). By channeling testimony that is actually expert testimony to Rule 702,
the rules ensure that a party will not evade the expert witness disclosure requirements by
disguising an expert witness as a layperson. Fed. R. Evid. 701 advisory committees note
(2000 Amend.).
Unquestionably, Defendants did not follow Rule 26(a)s expert-disclosure
requirements regarding Officer Pattys testimony because he was not designated to testify
as an expert. The dispositive question, therefore, is whether Officer Pattys testimony
about the safe speed of travel and lack of driver error was based on his special skill and
knowledge as a police officer (as Ms. Dahlberg claims) or on his firsthand perceptions (as
Defendants claim). If it was the former, then the testimony was improperly admitted
under Rule 701.
As for Officer Pattys testimony about speed, we believe a close reading of the trial
transcript shows that his testimony was based on his perception, not his special skill and
knowledge. First, Officer Patty testified: That day, most traffic was traveling about the
speed limit so I would say safe speed would be determined to be 75 miles an hour. App.
1483. This testimony was based on Officer Pattys firsthand perceptions as a highway
motorist on the day of the accident, and it resulted from a process of reasoning familiar
in everyday life, not one that could be mastered only by specialists in the field. Fed. R.
Evid. 701 advisory committee note (2000 Amend.); see YeleyDavis, 632 F.3d at 684.
True, Officer Pattys testimony went beyond a simple reporting of the general speed of
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travel; he testified that 75 miles per hour was a safe speed. Still, in this case at least, we
think the safe-speed opinion was not based on special police training but on simple
observations that could have been made by a lay witness.
As for Officer Pattys testimony about driver error, he stated the following:
Q. Now, Officer, based on your personal observations, your perceptions and
your investigation of the physical evidence, what driver error did you find on the
part of my client, Dan OBrien?
....
A. I found no violations of the statutes by that driver.
Q. Based on your observations, your perceptions and your investigation, what
violations or citations did you issue to my client, Dan OBrien?
A. None.
....
Q. Based on your observations, your perceptions and investigation, what did
you indicate on your report for my client as far as apparent contributing causes?
....
A. No defects.
Q. No driver error?
A. No driver error.
App. vol. 7, at 148384. Ms. Dahlberg argues that this testimony also falls outside the
scope of Rule 701. According to her, Officer Pattys testimony amounted to an opinion
about who was responsible for the accidenta responsibility that falls squarely within
the scope of a police officers special expertise. Appellants Br. at 75.
Even assuming Officer Pattys driver-error testimony went beyond the scope of Rule
701, we think that any error in admitting those opinions was harmless. While Officer
Patty testified that he did not report that either driver had erred, he also testified that there
was no physical evidence to contradict Ms. Dahlbergs version of events. On crossexamination, Ms. Dahlberg clarified that Officer Patty was not present during the
accident and that traffic citations are governed by the criminal code, not civil negligence
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law. We think the jury appropriately weighed Officer Pattys testimony in light of this
context. Moreover, apart from the disputed testimony, there was ample evidence to
suggest that OBrien did not commit any driving errors. OBrien himself testified that
there was nothing he could have done to avoid or prevent the accident, and the only
eyewitness (DuBois) corroborated this testimony. Indeed, apart from Ms. Dahlberg, no
witness testified that OBrien had done anything wrong, including Kevin JohnsonMs.
Dahlbergs own expert.

1.5 Evidence of Training

Next, Ms. Dahlberg challenges the district courts refusal to allow her to crossexamine OBrien about his training in accident prevention and wind safety. At trial, Ms.
Dahlberg sought permission to introduce MCTs training materials into evidence and to
cross-examine [OBrien] on those documents. App. vol. 8, at 1515. The district court
denied permission, citing its earlier rulings on trainingincluding, seemingly, its pretrial
dismissal of the negligent-training claim against MCT. By implication, the court ruled
that the training evidence was only relevant to this dismissed claim and was not relevant
for any other purpose. Ms. Dahlberg argued otherwise, telling the court that her crossexamination would show that OBrien ignored even the training he was given. Id. at
1517. The district court stood by its ruling.
We assume without deciding that Ms. Dahlbergs proffered training evidence was
relevant to her negligence claim against OBrien. But even if the district court abused its

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discretion by excluding this evidence, a new trial is not warranted because any error was
harmless.
Ms. Dahlberg argues otherwise and claims that she was prejudiced by the exclusion of
the training evidence in two respects. First, she says the training materials would have
established the specific steps that [OBrien] could have taken to prevent the accident.
Appellants Br. at 69 Even assuming this much, however, we fail to see how Ms.
Dahlberg was prejudiced by the district courts ruling. There were a number of ways Ms.
Dahlberg could have established the actions that OBrien should have takeni.e., those
comporting with standards of ordinary care under the circumstances. For example, Ms.
Dahlberg could have introduced this evidence through an expert witness or through other
driver manuals and guidelines not specific to MCTs training. Whats more, the jury
instructions defined ordinary care and told the jury to find OBrien negligent if he
encroached on Mr. Dahlbergs lane or if he was operating his vehicle at a speed too
fast for windy conditions. App. vol. 8, at 167576. To the extent Ms. Dahlberg hoped to
show that staying within ones lane and driving at a safe speed were the specific steps
OBrien should have taken to avoid the accident, she didnt need the training materials to
do so.
Second, Ms. Dahlberg says she was prejudiced by the exclusion of the training
materials because they would have been used to refute a key piece of evidence
Defendant OBriens assertion that there was nothing he could have done to prevent the
accident. Appellants Br. at 6970 (emphasis omitted). All Ms. Dahlberg needed to do to
refute this testimony, however, was to ask OBrien about the various things he could have
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done differently. Indeed, Ms. Dahlberg did in fact ask a few questions of this variety. She
asked OBrien if he could have slowed down, to which OBrien responded that he didnt
know at what point slowing down would have made a difference. She also asked if he
could have decided not to drive in such high winds, and OBrien said he could have. But
beyond this, Ms. Dahlberg posed no other alternate courses of action so as to persuade the
jury that OBrien was to blame. If the training materials contained other steps that
OBrien could and should have taken, we do not understand why Ms. Dahlberg didnt
simply ask OBrien if those steps were available to him and why he chose not to take
them.
Furthermore, despite the assumed relevance of the training materials, we think that
they were properly excludable on alternate grounds under Federal Rule of Evidence 403.
11 Charles Alan Wright et al., Federal Practice and Procedure 2885, at 62930 (3d ed.
2012) (Even though the ground on which the evidence was rejected is unsound, the error
is harmless if the evidence clearly was inadmissible on some other ground.); see Lutz v.
Weld Cnty. Sch. Dist. No. 6, 784 F.2d 340, 34445 (10th Cir. 1986) (finding any error in
the district courts basis for excluding evidence harmless and irrelevant since Rule 403
provided an adequate ground for exclusion). Because the district court seemingly
concluded that the training materials were not relevant, it had no need to consider
whether their probative value [was] substantially outweighed by a danger of unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence. Fed. R. Evid. 403. But after reviewing the
training materials ourselves, we think the probative value of this evidence was
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substantially outweighed by many of these dangers. Much of the information in the 60plus pages of training materials related to tractor-trailer rollovers, something that didnt
occur here. The materials also showed accident statistics, the physics of rollovers,
numerous contributing factors to accidents (including alcohol and poor vision), the costs
associated with accidents, and several photographs of unrelated accidents and roadways.
From our perspective, much of this evidence would have posed a real danger of unfair
prejudice to Defendants or confusion of the issues.4

1.6 Guntharps Testimony

Finally, we address Ms. Dahlbergs challenge to the district courts exclusion of her
designated trucking-industry expert, Walter Guntharp. With this challenge, Ms. Dahlberg
faults the district court for circular reasoning: she argues that the court dismissed the
negligent-training and negligent-supervision claims against MCT for lack of evidentiary
support, but excluded Guntharps designated testimony supporting those claims solely
because the claims had been dismissed. Thus, she asserts, the dismissal was based
upon the lack of evidence, while the exclusion of the pertinent evidence was based upon
the dismissal. Appellants Br. at 54.
The real issue underlying Ms. Dahlbergs challenge is whether the district court
properly dismissed the negligent-training and negligent-supervision claims. Again, Ms.
Dahlberg argues that because the district court should have allowed her claims against

Some of this information could have been redacted. But Ms. Dahlberg did not urge
redaction at trial and instead argued for the wholesale admission of MCTs training
materials.
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MCT to go forward, it should also have allowed Guntharps testimony in support of

those claims. Id. Yet, apart from arguing that Guntharps testimony was relevant to the
improperly dismissed claims, Ms. Dahlberg does not argue that the district courts
exclusion was improper. Put another way, if the district court properly dismissed the
negligent-training and negligent-supervision claims, Ms. Dahlberg gives us no reason to
think that the district court was wrong in excluding Guntharp.
It is indeed true that the district court excluded some of Guntharps designated
testimonythree opinions to be precisebecause those opinions were only relevant to
claims that had been dismissed.5 It is also true that two of these excluded opinions
supported Ms. Dahlbergs claims for negligent training and negligent supervision;
Guntharp opined that (1) MCTs decision to allow OBrien to drive alone after two
months of experience was inappropriate and dangerous, and (2) this decision was
particularly egregious since it was still wintertime when driving conditions could be
adverse.6 Had the negligent-training and negligent-supervision claims survived, we might
question the district courts decision to exclude this relevant testimony.

The district court excluded Guntharps three other designated opinions for other
reasons, none of which Ms. Dahlberg challenges on appeal.
6

Its unclear if Ms. Dahlberg also challenges the district courts exclusion of
Guntharps designated opinion that OBrien was in violation of Federal Motor Safety
Carrier Regulation 395.14 (which requires extreme caution in hazardous conditions). If
so, we fail to see how this opinion is relevant to MCTs alleged negligence in training and
supervising OBrien. Indeed, the district court did not exclude this testimony on these
grounds, but rather because it was irrelevant to other previously dismissed portions of the
complaint having to do with OBriens alleged fault. Again, Ms. Dahlberg only
challenges the dismissal of the direct-negligence claims against MCT on appeal.
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But those claims didnt survive, and as we discuss below, the jurys verdict rendered
any error the district court might have made in dismissing those claims harmless. Because
the jury found that OBrien was not negligent, there is no way it could have properly
found that MCT waseven if the negligent-training and negligent-supervision claims
had gone to trial. No amount of testimony from Guntharp about MCTs fault in allowing
OBrien to drive alone would have properly changed the jurys finding that OBrien was
not at fault on the day of the accident. (And Ms. Dahlberg does not argue otherwise.)
Accordingly, Ms. Dahlbergs challenge to the exclusion of Guntharps testimony is
without merit because it rests on the existence of another claimed error that was, at most,
harmless.

2. The Negligent-Training and Negligent-Supervision Claims Against MCT

Long before trial, Defendants filed a motion to dismiss certain paragraphs of Ms.
Dahlbergs complaint under Rules 11 and 12(b)(6). The district court granted the motion,
finding that the paragraphs lacked evidentiary support and a factual basis. While the court
did not expect Ms. Dahlberg to produce evidence in response to the motion to dismiss, it
did not believe that she had provided sufficient assurance that her contentions complied
with Rule 11. The district court then denied Ms. Dahlbergs motion to reconsider and
clarified that it had not imposed Rule 11 sanctions but had dismissed portions of the
complaint due to an apparent lack of factual basis under Rule 12(b)(6). App. vol. 1, at
158. The court said it might reconsider its ruling if and when Ms. Dahlberg could
demonstrate with particularity the factual basis for the dismissed paragraphs. But despite

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later motions from Ms. Dahlberg, the district court did not change its mind. From its
perspective, the negligent-training and negligent-supervision claims against MCT were
not supported by the evidence, not genuinely in dispute, and not worthy of the jurys
time. App. vol. 4, at 632.
On appeal, Ms. Dahlberg challenges the district courts dismissal of paragraph 37 of
her complaint, which she asserts stated claims against Defendant MCT for negligent
training and supervision of Defendant OBrien. Appellants Br. at 16. She contends that
the district court applied the wrong standard and improperly considered evidence outside
the pleadings, effectively converting the motion to dismiss into a motion for summary
judgment without notice. These errors were compounded, she claims, when the court
failed to reconsider despite later-produced evidence in support of MCTs negligence.
We can understand why Ms. Dahlberg might be confused by the district courts
dismissal. But even if the district courts ruling was confusing, it does not follow that
Rule 12(b)(6) dismissal was improper. Because our review is de novo, Bixler v. Foster,
596 F.3d 751, 756 (10th Cir. 2010), our only concern on appeal is with the sufficiency of
the complaint. See GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381,
1384 (10th Cir. 1997) (recognizing that failing to convert a Rule 12(b)(6) motion to a
motion for summary judgment will not constitute reversible error if the dismissal can be
justified without considering the outside materials). Even if we were to disagree with the
district courts reasoning, we might still agree that the paragraphs at issue were properly
dismissed. See United States v. Holmes, 727 F.3d 1230, 1233 (10th Cir. 2013) (Our
general rule is that we may affirm a district court judgment on a basis different from that
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employed by the district court, assuming that the alternate basis is consistent with the
record.).
But in this case, we choose not to consider whether the paragraphs at issue were
properly dismissed under Rule 12(b)(6). We make that choice because regardless of
whether the negligent-training and negligent-supervision claims were properly dismissed,
the jurys no-negligence verdict as to OBrien forecloses the possibility that Ms.
Dahlberg could have succeeded on those claims. As we have recognized, we need not
resolve whether a pre-verdict dismissal of a claim was proper if the jurys verdict on the
remaining claims shows that any error in failing to present the dismissed claim to the jury
was harmless. Abbasid, Inc. v. First Natl Bank of Santa Fe, 666 F.3d 691, 696 (10th Cir.
2012).
Again, to have found OBrien negligent, the jury had to find at least one of the
following: (1) that OBrien had encroached on Mr. Dahlbergs lane; (2) that OBrien was
operating his vehicle at a speed too fast for the windy conditions; (3) that OBrien failed
to exercise ordinary care at all times to prevent an accident; or (4) that OBrien failed to
maintain proper control of his vehicle so as to avoid placing himself or others in danger
and to prevent an accident. Because the jury did not find OBrien negligent, however, the
jury necessarily concluded that OBrien had not done any of these things. He did not
encroach on Mr. Dahlbergs lane, he did not operate his vehicle at a speed too fast for
windy conditions, he did not fail to exercise ordinary care, and he did not fail to maintain
proper control of his vehicle.

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Given this, we fail to see how Ms. Dahlberg could possibly show (and how the jury
could possibly find) that the Dahlbergs injuries were caused by any deficient training or
supervision on the part of MCT. Even if MCT did nothing to train or supervise OBrien,
OBriens driving comported with standards of reasonable care on the day of the accident.
At most, the jurys verdict might suggest that OBrien was not negligent in spite of his
employers poor management practices. But because OBrien was not negligent, there is
no causal link between any presumed negligence on the part of MCT and the harm
ultimately suffered by the Dahlbergs. This of course is fatal to Ms. Dahlbergs negligenttraining and negligent-supervision claims because causation is a required element of both
claims under New Mexico law. See Lessard v. Coronado Paint & Decorating Ctr., Inc.,
168 P.3d 155, 165 (N.M. Ct. App. 2007) (A principal who conducts an activity through
an agent is subject to liability for harm to a third party caused by the agents conduct if
the harm was caused by the principal's negligence in selecting, training, retaining,
supervising, or otherwise controlling the agent. (emphasis added) (quoting Restatement
(Third) of Agency 7.05(1) (2006))); see also N.M. Uniform Civil Jury Instructions 131647 (Negligence in hiring, supervising, retaining an employee).
Despite the jurys verdict, Ms. Dahlberg argues that her inability to present the
negligent-training and negligent-supervision claims was prejudicial. First, she contends
that these claims were not derivative, meaning they did not depend on the underlying
liability of OBrien. In this way, she argues her direct-negligence claims against MCT
differ from vicarious liability claims in the respondeat superior contextwhere the
employer is only liable to the extent that its employee or agent is liable. Thus, she
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argues, a finding of negligence against the employee is not a necessary prerequisite to a

claim for negligent training and supervision. Reply Br. at 10.
Ms. Dahlberg is correct that New Mexico courts recognize a distinction between
vicarious liability based on imputed liability and claims based on direct negligence in
which an employer is allegedly to blame for its own tortious conduct. An employer is
obviously not liable absent negligence on the part of its employee in the vicariousliability context, but New Mexico courts have not explicitly said the same when the
plaintiff claims that the employer is liable for fault of its own. See Valdez v. R-Way, LLC,
237 P.3d 1289, 1292 (N.M. Ct. App. 2010) ([B]ecause Defendants liability was imputed
solely based on the negligent conduct of [its employee], without fault of its own, the
release of [the employee] removed the basis on which Defendants fault was being
imputed.).
That said, Ms. Dahlberg has not identifiednor are we aware ofa single case in
which a plaintiff was able to sustain a negligent-training or negligent-supervision claim
against an employer without some actionable misconduct on the part of the employee
who caused the injury. In fact, our survey of New Mexico caselaw suggests that
negligent-training and negligent-supervision claims depend on underlying employee
wrongdoing.7 In any event, we need not hold that an employees tortious conduct is a

See, e.g., EEOC v. MTS Corp., 937 F. Supp. 1503, 1515 (D.N.M. 1996) (An
employer may be liable in tort for negligent retention, supervision, and training for the
wrongful conduct of an employee even though the employer is not responsible for such
acts under the doctrine of respondeat superior.) (emphasis added); Lessard, 168 P.3d at
157 (alleging employer was directly negligent in hiring an unsafe driver, whom plaintiffs
had also sued for negligence); Los Ranchitos v. Tierra Grande, Inc., 861 P.2d 263, 269
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prerequisite to employer negligence in every case alleging inadequate training or

supervision in order to find that an absence of such conduct is dispositive here.
Ms. Dahlbergs only other point is that the jury made no special finding that OBrien
did not cause her injuries. The jury simply concluded that OBrien was not negligent.
For all we know, Ms. Dahlberg asserts, the jury concluded that Defendant OBrien did
cause Plaintiffs injuries. Reply Br. at 9 (emphasis added). Assuming what Ms. Dahlberg
suggeststhat the jury believed OBrien caused the accident with his nonnegligent
conductthen its possible that MCT could have prevented the accident by somehow
preparing OBrien to perform above and beyond what we expect of ordinary and
reasonable truck drivers. But while we may hope that people perform in extraordinary
ways while driving on our highways, we do not require this sort of extraordinary conduct
under the law.

CONCLUSION
We find no error in the district courts evidentiary rulings that would entitle Ms.
Dahlberg to a new trial on her negligence claim against OBrien. Because we conclude
that the jurys no-negligence verdict stands as to OBrien, we also conclude that the

(N.M. Ct. App. 1993) (alleging negligent supervision and retention where employer gave
employee access to plaintiffs funds after it knew, or should have known, that the
employee was embezzling money and plaintiff also sued employee); Valdez v. Warner,
742 P.2d 517, 51921 (N.M. Ct. App. 1987) (reversing directed verdict for employer on
negligent-hiring and negligent-retention claims where there was evidence that employer
knew about employees violent behavior before it hired him and the plaintiff sued the
employee for assault).

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pretrial dismissal of the negligent-training and negligent-supervision claims against MCT

was harmless. We affirm the district courts judgment.

ENTERED FOR THE COURT

Gregory A. Phillips
Circuit Judge

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